Federal judge blocks Montana’s first-in-the-nation ban on TikTok, says it’s unconstitutional

HELENA, Mont. (AP) — Montana’s first-in-the-nation law banning the video-sharing app TikTok in the state has been blocked while a legal challenge to the law moves through the courts, a federal judge ruled Thursday.

U.S. District Judge Donald Molloy said the ban “oversteps state power and infringes on the Constitutional right of users and businesses.”

The ban had been scheduled to take effect Jan. 1.

Montana’s Republican-controlled Legislature made the state the first in the U.S. to pass a complete ban on the app, based on the argument that the Chinese government could gain access to user information from TikTok, whose parent company, ByteDance, is based in Beijing.

Western governments have expressed worries that the popular social media platform could put sensitive data in the hands of the Chinese government or be used as a tool to spread misinformation. Chinese law allows the government to order companies to help it gather intelligence.

Attorneys for TikTok and the content creators argued on Oct. 12 that the state has gone “completely overboard” in trying to regulate TikTok and is essentially trying to implement its own foreign policy over unproven concerns that TikTok might share user data with the Chinese government.

TikTok has said in court filings that Montana could have limited the kinds of data TikTok could collect from its users rather than enacting a complete ban. Meanwhile, the content creators say the ban violates free speech rights and could cause economic harm for their businesses.

Christian Corrigan, the state’s solicitor general, argued Montana’s law was less a statement of foreign policy and instead addresses “serious, widespread concerns about data privacy.”

Molloy noted during the hearing that TikTok users consent to the company’s data collection policies and that Attorney General Austin Knudsen — whose office drafted the legislation — could air public service announcements warning people about the data TikTok collects.

“Despite the state’s attempt to defend (the law) as a consumer protection bill, the current record leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” Molloy wrote Thursday. “This is especially apparent in that the same legislature enacted an entirely separate law that purports to broadly protect consumers’ digital data and privacy.”

Knudsen’s office said the ruling is preliminary and the case will continue to be heard.

“The judge indicated several times that the analysis could change as the case proceeds and the State has the opportunity to present a full factual record,” said Emily Cantrell, spokesperson for Knudsen. “We look forward to presenting the complete legal argument to defend the law that protects Montanans from the Chinese Communist Party obtaining and using their data.”

More than half of U.S. states and the federal government have banned TikTok on official devices. The company has called the bans “political theatre” and says further restrictions are unnecessary due to the efforts it is taking to protect U.S. data by storing it on Oracle servers.

The bill was brought before the Montana Legislature a few weeks after a Chinese spy balloon flew over the state. It would prohibit downloads of TikTok in the state and fine any “entity” — an app store or TikTok — $10,000 per day for each time someone “is offered the ability” to access or download the app. There would not be penalties for users.

The American Civil Liberties Union, its Montana chapter and the Electronic Frontier Foundation, a digital privacy rights advocacy group, have submitted an amicus brief in support of the challenge. Meanwhile, 18 attorneys generals from mostly Republican-led states are backing Montana and asking the judge to let the law be implemented. Even if that happens, cybersecurity experts have said it could be challenging to enforce.